Equity in English Contract Law: the Impact of the Judicature Acts (1873–75)

Just before the Judicature Acts came into force, the equity bar objected that the new court would be dominated by common law judges, whose ignorance of equity would ‘endanger the very existence of Equity jurisprudence’. This objection, though ridiculed at the time, can be seen in retrospect to have had some substance. In respect of several important aspects of contract law, notably unfairness, mistake, and privity, former equitable approaches were, after 1875, effectively marginalized both by the courts and by the writers of treatises on English contract law.     

“Virgins–Widows–Spouses”: On the language of moral distinction as applied to women and men in the Middle Ages

The focus of this paper is on the meaning enshrined in the rhetorical formula “Virgins–Widows–Spouses,” according to which women could expect to receive a 100-, 60-, or 30-fold reward, respectively, in the life hereafter. Initially formulated around 400 A.D., the formula rapidly became an abbreviation for an understanding of society that was used to conceptualize and legitimize religious practices and the political–social order. Although used especially to define a normative standard for women, it was also frequently lauded as a model for men. The idea of widow, applied to men and women, represented the connection between penance and asceticism. Since the 13th century, however, references to virgins, widows, and spouses ceased for the most part to denote a moral standing based on merit regardless of sex and instead came to designate women according to their stage in life. Men, by contrast, were ranked according to their occupations.     

From Car Wash to Bolsonaro: Law and Lawyers in Brazil's Illiberal Turn (2014–2018)

Law and lawyers tend to be seen as either preferential victims of or key counterforces to rising illiberalism. Brazil offers a good testbed for these claims. Brazilian democracy has deteriorated considerably, as epitomized by the election of Jair Bolsonaro in 2018. Yet, since 2014, law and lawyers have become ever more central to Brazil's field of state power. As the anti-corruption initiative Car Wash (Lava Jato) gained momentum, Brazilian judges and prosecutors were celebrated, locally and globally, as champions of transparency, accountability, and ‘the rule of law’. Following a closer look at Car Wash, this article questions such idealization of law and lawyers. Drawing on research on press interviews and statements by Car Wash legal officers, I find that, throughout the case, they produced a ‘political grammar’ that is closer to illiberalism than many would predict. Based on recent developments in the sociology of fields, I argue that the production of these grammars yields societal effects that deserve scholarly and civic attention.     

“Human Habitation or Economic Life of their Own”: The Definition of Features Between History,Technology and the Law

Liverpool Law Review - Article 121(3) of the United Nations Convention on the Law of the Sea (UNCLOS) establishes the regime of geographical features. It distinguishes the island from...     

Criminal Law, the Victim and Community: The Shades of ‘We’ and the Conceptual Involvement of Community in Contemporary Criminal Law Theory

The article addresses the argument, put forward by Lernestedt, that the proprietor of the ‘criminal-law conflict’ is the community (or the community and the offender) and discusses his proposed theoretical model of criminal law trial. I raise questions regarding the legitimacy of such a model, focusing on four counts. Firstly, I assert that his assumptions about the state the individual and the old/new versions of criminal law theory are society-dependent. Secondly, I address some problems with the concept of community and particularly with the proposed conception of community, which seems to mostly exclude the offender. Thirdly, I question the need for (or added value of) such a proposed conceptual involvement of the community as an actor in the criminal law process and theory. Lastly, some potential problems with the idea of the victim as a mere “representative of us” are mentioned, including the possibly undesirable demands and limitations on the victim’s agency and issues of respect for the victim’s individuality.     

Lord Cooke of Thorndon (1926–2006): 51 Years in the Law

This article provides an in‐depth analysis of the landmark ‘cash for query’ judgment of the Constitutional Bench of the Supreme Court of India. The scope of parliamentary privileges in India, as well as in England and America, is examined, particularly with respect to the jurisdiction of the courts. The present position in the law of parliamentary privileges in India was laid down in the case of Raja Ram Pal v The Hon’ble Speaker, Lok Sabha, &; Ors. The Supreme Court of India has extensively dwelled on the matter and has delivered a judgment, which is by far the most comprehensive decision in this field of law. The author notes in the analysis that the difference between the English and Indian constitutional systems is of crucial significance. The conflicts between the judiciary and parliament in England arose because of the sovereignty of parliament, and the judiciary had to fight for every inch of its jurisdiction in England. The judiciary had to contend with Parliament not only as a legislative body, but also by virtue of being the ‘High Court of Parliament’, as a superior court. Because of these reasons, the case law from British constitutional history does not have strict applicability in India. The decision of the Supreme Court of India in Raja Ram Pal v The Hon’ble Speaker, Lok Sabha, &; Ors, is a clear expression of a very basic feature of the Indian constitutional mechanism: where the Constitution is the supreme law of the land, and all governmental organs, which owe their origin to the Constitution and derive their powers from its provisions, must function within its framework.     

Immigrants,their children,and theories of assimilation: Family structure in the United States, 1880–1970

This research employs United States census data from 1880 to 1970 to assess the influence of ethnicity and generation on the family structure of Mexican, Irish, Swedish, Italian, Polish, and native white children. Using evidence for three generations, it tests two theories, linear assimilation and segmented assimilation. Assimilation theory makes no special claims for ethnic effects, but segmented assimilation proposes that ethnicity influences the incorporation of immigrant-origin children into American society. We find few consistent ethnic effects on the probability of family type. Our principal finding is that migration itself, common to all groups, has similar consequences for all; these are revealed in generational changes in family structure. The historical periods of open immigration do differ from the contemporary period, which implies that immigration policy affects family structure. The results disconfirm segmented assimilation theory's emphasis on ethnicity in family structure, and confirm aspects of linear assimilation theory. They point to the salience of structural factors resulting from the migration process and policy, rather than ethnicity, in the evolution of family form among immigrant-origin persons.     

For the Love of Darcie: Recognising the Human–Companion Animal Relationship in Housing Law and Policy

This paper identifies the law’s failure to recognise and protect the human–companion animal relationship in the housing arena. The nature of the human–companion animal relationship has striking similarities to human–human relationships in the socially supportive aspects of the relationship such as attachment, nurturance and reliable alliance. This contributes to the social life and sense of well-being of the owner. There is also evidence that the human–companion animal relationship can have physical health benefits such as lowering the risk of death by cardiovascular disease. It is clear that society benefits from the human–companion animal relationship, which many owners perceive as akin to family, in the form of healthier, less isolated people with better social networks. Yet in the key area of housing, the law does nothing to protect or even recognise this relationship. In consequence, every year thousands of tenants in both the public and private sector are faced with ‘no pet’ covenants in their leases and grapple with difficulties such as reduced housing options, higher rents or the traumatic decision to give up their companion animal for rehoming or euthanasia. This is especially prevalent amongst vulnerable people, like the elderly and mentally ill, who are more likely to need to move into supported accommodation. This article examines housing law in countries, such as France and Canada, that prohibit ‘no pet’ covenants in residential leases and provides arguments for the effective formulation and implementation of such law in the UK.     

Religion,masculinity and fertility decline: A comparative analysis of Protestant and Catholic culture (Switzerland 1890–1930)

This paper provides the sketch of a new mechanism explaining the delay of Catholic fertility, namely the changing norms of masculinity and fatherhood, through a comparative study of the first fertility transition in Switzerland (1880–1930).Comparative analysis of religious discourse attests to striking differences in norms of respectable masculinity. In the Protestant canton, men were especially targeted and strongly incited to change their sexual behaviour and limit their offspring in order to comply with a new model of the good husband and father. The religious teachings had an impact due to the social position of the persons enouncing the norms, to the efficient diffusion reaching the majority of men, and to the effective sanctioning, as the example of pastoral enquiries demonstrates. In the Catholic canton by contrast, men were not specifically addressed; the religious discourse supported the husband's rights to frequent sexual intercourse and encouraged him to trust Providence to bring up many children, thus sustaining high levels of fertility. The political repression of public discourse on sexuality defeated every attempt of contesting the husband's marital rights and the Catholic doctrine of procreation. Sexual taboos were particularly severe for women and their total ignorance of sexual matters weakened their bargaining power in fertility decisions.In the last part of the paper, using quantitative methods, we tried to demonstrate that these norms and mechanisms did indeed influence men's behaviour in the Protestant sample. For this purpose, we measured comparatively the results of some indicators introduced to capture the impact of the norms of respectable masculinity, regarding men's responsibility in contraception and men's ability to maintain dependent children. We hope thus to strengthen the position of a growing number of scholars who state that historical demographers cannot avoid incorporating gender into their explanations of historical trends of fertility and who foster the bridging of qualitative and quantitative methods.     

Review of Findlay Stark,Culpable Carelessness: Recklessness and Negligence in the Criminal Law

This book review sketches the main arguments of Findlay Stark’s book, and then goes on to develop an objection to Stark’s account of one of the core notions in the book—namely, awareness of risk.     

Survival strategies of widows and their families in early modern Holland,c. 1580–1750

This article analyses the impact of widowhood upon women in early modern urban society in Holland. Widows were able to maintain their households and to minimize the discontinuity with their lives when married. A remarkably egalitarian inheritance and marital property law, access to a broad range of occupations, a privileged status, an extended poor relief system, institutionalised mutual assistance and new forms of financial provisions for widows enabled widows to survive after the loss of an adult male breadwinner. However, legal rights, social provisions and economic opportunities available to women in the Dutch Golden Age and thereafter, could not prevent social polarization after women lost their spouse.     

The Inefficiency of Quasi–Per Se Rules: Regulating Information Exchange in EU and U.S. Antitrust Law

It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange, substantial differences remain. In this article, we make a normative argument for the U.S. antitrust regime's approach, on the basis that the United States’ approach to information exchange is likely to be more efficient than the relevant approach under the EU competition regime. Using economic theories of harm concerning information exchange to understand the imposition of liability in relation to “stand-alone” instances of information exchange, we argue that such liability must be grounded on the conception of a prophylactic rule. We characterize this rule as a form of ex ante regulation and explain why it has no ex post counterpart in antitrust law. In contrast to the U.S. antitrust regime, we argue that the implementation of such a rule pursuant to EU competition law leads to higher error costs without a significant reduction in regulatory costs. As a majority of jurisdictions have competition law regimes that resemble EU competition law more closely than U.S. antitrust law, our thesis has important implications for competition regimes around the world.     

Industry-Led Standards,Relational Contracts and Good Faith: Are the UK and Australia Setting the Pace in (Construction) Contract Law?

Liverpool Law Review - The law of contract is changing. “Good faith” and “relational contracts” are used by parties more than ever before in commercial disputes. Yet, their...